Opinion
No. 2-280 / 01-1574.
Filed May 15, 2002.
Appeal from the Iowa District Court for Woodbury County, MARY L. TIMKO, Associate Juvenile Judge.
The mother appeals the termination of her parental rights to her child. AFFIRMED.
Patrick T. Parry of Forker and Parry, Sioux City, for appellant-mother.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Michele Lauters, Assistant County Attorney, for appellee-State.
Joseph Kertels, Sioux City, for minor child.
Considered by HABHAB, PETERSON, and SNELL, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
The parental rights of A.E. (mother) and T.A. (father) to their son, C.E., born May 11, 1989, were terminated on August 13, 2001. Termination was pursuant to Iowa Code sections 232.116(1)(d) and (e) (2001). The court further determined that termination was in the best interest of the child. His mother appeals. His father does not. We affirm.
I. The juvenile court terminated A.E.'s parental rights pursuant to sections 232.116(1)(d) and (e). Although, from our de novo review of the record, we find there is sufficient evidence to terminate the mother's parental rights under both sections, we affirm termination under section 232.116(1)(e). When a juvenile court terminates parental rights on more than one statutory ground, the appellate court only needs to find grounds to terminate parental rights under one of the sections cited by the juvenile court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996).
II. Section 232.116(1)(e) provides that termination may occur when:
e . The court finds that all of the following have occurred:
(1)The child is four years of age or older.
(2)The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3)The child has been removed from the physical custody of the child's parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days.
(4)There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
In cases meeting the criteria set forth in section 232.116(1)(e), the legislature "has made a categorical determination that the needs of a child are promoted by termination of parental rights." In re M.W., 458 N.W.2d 847, 850 (Iowa 1990). Termination is in the best interest of the child whenever there is sufficient evidence to prove any of the statutory grounds for termination. In re L.M.F., 490 N.W.2d 66, 68 (Iowa Ct. App. 1992). The supreme court has stated that after the statutory limit of twelve months, the case must be viewed with a sense of urgency. In re L.L., 459 N.W.2d 489, 495 (Iowa 1990).
Appellate court review of parent-child termination proceedings is de novo. Iowa R. App. P. 4; In re S.N., 500 N.W.2d 32, 34 (Iowa 1993); In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct. App. 1998). Accordingly, we review the facts as well as the law and adjudicate rights anew. L.L., 459 N.W.2d at 493. Although we are not bound to do so, because the trial court has the opportunity to observe the demeanor of the witnesses, we do give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R. App. P. 6.14(6)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993); In re J.L.W., 523 N.W.2d 622, 623 (Iowa Ct. App. 1994).
The primary interest in termination proceedings is the best interest of the child. Iowa R. App. P. 6.14(6)(o). The Department of Human Services (Department) has the burden of proving the grounds for termination of a parent-child relationship by clear and convincing evidence. Iowa Code §§ 232.116(1), 232.117(2) and (3); In re T.A.L., 505 N.W.2d 480, 481 (Iowa 1993); In re E.K., 568 N.W.2d 829, 830 (Iowa Ct. App. 1997). If the Department does not prove the allegations of its petition by clear and convincing evidence, Iowa's Code requires dismissal of the petition. Iowa Code § 232.117(2).
"Clear and convincing evidence" means there are no serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000); In re F.J.M., 539 N.W.2d 496, 497 (Iowa Ct. App. 1995). The "clear and convincing evidence" standard of proof is more than a preponderance of the evidence and less than evidence beyond a reasonable doubt. King v. King, 291 N.W.2d 22, 23 (Iowa 1980); In re L.G., 532 N.W.2d 478, 479 (Iowa Ct. App. 1995).
III. The appellant, in her brief, does not dispute that the Department has proven by clear and convincing evidence elements (1), (2), and (3) of section 232.116(1)(e). The appellant asserts that the department has failed to prove that C.E. cannot be returned to her custody. The only argument appellant makes in her briefs is as follows:
Iowa Code section 232.116(1)(e) includes the following element which must be proven by clear and convincing evidence in order for a T.P.R. to occur:
(4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
[A.E.] maintains that there is no reason, either contained in section 232.102 or otherwise that [C.E.] cannot be returned to her care at the present time. No evidence was presented by the State to demonstrate that [C.E.] could not be returned to the home, as the state had no knowledge of [A.E.'s] current living situation.
Contrary to the assertions of the appellant, and from our de novo review of the record, we find there is clear and convincing evidence that at the present time C.E. cannot be returned to the custody of his mother as provided in section 232.102.
As our supreme court stated in In re E.B.L., 501 N.W.2d 547, 550 (Iowa 1993):
Section 232.116(1)(e)(4) requires proof that the child remains a `child in need of assistance' as defined in section 232.2(6). If any one of the grounds listed in section 232.6 is proven by clear and convincing evidence, there is sufficient basis for termination.In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995). The juvenile court found that C.E. could not be returned to A.E.'s custody for he is still a child in need of assistance. The record supports this finding.
A.E. has had the benefit of services for at least two years. She has made little, if any, progress. At the time of the termination hearing she had neither a stable residence nor employment nor any visible means of providing for the needs and wants of C.E. Regrettably, she has totally failed to deal with her substance abuse and mental health issues.
The juvenile court, to its credit, did all it could do to preserve the mother-son relationship. On March 12, 2001, the termination hearing came before the court. The court at that hearing heard testimony from a number of witnesses. In its ruling, the court stated, "At this point, the recommendations of all parties except for Mr. Parry (A.E.'s attorney) and Mr. Kertels (C.E.'s attorney) is that the court enter an order terminating the parental rights of A.E. and D.W." Notwithstanding those strong recommendations, the court continued the termination hearing for four months, thus giving A.E. additional time to turn her life around. A.E. failed to do so.
The termination hearing was reconvened on August 13, 2001. At that hearing, the court in its termination ruling stated:
The Court finds that [A.E.] has an unrealistic expectation of what it would be like to parent [C.E.] and provide for his basic needs. In April of 2001, the Court continued the termination of parental rights proceeding in an effort to determine if [A.E.'s] changes were long-term or 11th-hour changes. The Court felt it was important to see if [A.E.'s] progress was a breakthrough in this case. After reviewing the reports and listening to the testimony today, it is clear that [A.E.] is unable to maintain any progress for any significant period of time.
* * *
The Court concludes that [A.E.] has been unable to place herself in a position to have [C.E.] returned to her care. The court concludes that waiting any longer for [A.E.] to do so would not be productive and would in fact be detrimental and destructive to the best interests and well-being of [C.E.] It is clear that he is in need of a permanent order in order for him to be able to direct his life in one direction or another.
We concur with those findings. In In re A.M.S., 419 N.W.2d 723 (Iowa 1988), our supreme court acknowledged the efforts of the social workers to preserve the family relationship. Like in A.M.S., the social worker and others have worked long and hard to improve A.E.'s parenting skills. Despite these efforts, A.E. has not responded favorably.
C.E. was born May 11, 1989. Little time remains before he loses any real chance to be adopted. At the present time, he is adoptable. He should be given a chance. We affirm on this issue.
IV. The juvenile court, in addition to finding there was sufficient evidence to terminate the parental rights of the mother pursuant to sections 232.116(1)(d) and (e), also determined that termination was in the best interests of C.E.
A.E. has a lengthy history of substance abuse. C.E. and his brother were placed in shelter care in August 1999. A.E.'s medical records reflect that she has been an intravenous drug abuser. C.E. and his brother described illegal intravenous drug usage by his mother and C.E.'s putative father. C.E. reported that his putative father had given him a gun and told him to kill a dog and has also wanted him to use drugs.
By September 9, 1999, the date of the removal hearing, C.E. and his brother had left the shelter and were residing with friends of the family. In a September 10, 1999 order, the court found the two children would be in imminent danger if returned to the custody of their parents. A Child Protective Assessment was opened August 26, 1999. Following an investigation, sufficient evidence was found to confirm that abuse in the form of denial of critical care/failure to provide proper shelter had occurred with A.E. and C.E.'s putative father as perpetrators of the abuse and C.E. and his brother the victims. At the adjudicatory hearing, the court found that A.E. had a long history of chemical dependency.
It would serve little, if any, purpose to spread across this opinion the living conditions C.E. was subjected to. The various exhibits that are a part of the record are revealing and informative.
Our primary concern in a termination proceeding is the best interests of the child. In re R.R.K., 544 N.W.2d 274, 275 (Iowa Ct. App. 1995). Those best interests are to be determined by looking at the child's long-range as well as immediate interests. We are to consider what the future likely holds for the child if that child is returned to his or her parents. Insight for that determination is to be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care that the parent is capable of providing. In re L.L., 459 N.W.2d at 493-94; In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981); In re T.T., 541 N.W.2d 552, 555 (Iowa Ct. App. 1995). Case history records are entitled to much probative force when a parent's record is being examined. Harter v. State, 260 Iowa 605, 608-09, 149 N.W.2d 827, 829 (1967).
From our de novo review of the record, we conclude that the juvenile court correctly determined that termination was in C.E.'s best interest.
V. The appellant next argues that the Department failed to make accommodations for A.E.'s mental illness in violation of the Americans with Disabilities Act of 1990 and that the Department failed to make reasonable efforts to unite A.E. with C.E. These issues were not raised in the juvenile court. But even if they were, we find them to be without merit. The record firmly establishes otherwise.
AFFIRMED.